The Right to Choose Includes the Right to Choose Life

by Alan M. Dershowitz
March 16, 2017

There is no conflict between the “right to choose” and “the right to life” in the context of abortion, because the former includes the latter. If the state were ever to require a pregnant woman to undergo an abortion — as China in effect did with its “one child” policy — there would be a conflict. But in the United States, the right to choose includes the right to choose life rather than abortion. It also includes the right of women to choose abortion for themselves.

So, what are the anti-abortion right-to-life advocates complaining about? They do not want any woman to have the right to choose abortion for herself. They want to have the state chose for her — to deny her the right to choose between giving birth to an unwanted child and having an abortion.

They believe that abortion is infanticide — murder — not of their child but of the fetus of the woman who would choose abortion. But that woman does not regard the fetus as her child. So, the right to lifer responds: it doesn’t matter what you think. It matters what the state thinks. The vast majority — 70% — of citizens the United States think a woman should have the right to control her own reproduction — to choose whether the embryo or the fetus becomes her child, according to a Pew study this year.

If a woman has been impregnated while being raped, she may not regard the fetus as “her child.” The same may be true of other unwanted pregnancies, such as those of teenagers who mentally and physically may be unable raise or care for a child for the rest of her life. The problem is what the late Senator Daniel Patrick Moynihan called, “Children having children.”

What gives other people the right to decide, when they are not the ones who will have to bear the consequences?

So, the issue is not whether there should be choice, but rather who should make the choice. What is more than ironic that so many conservatives, who believe that the state should not make other choices for its citizens, insist on the state making this highly personal choice for all women.

Right-to-life extremists argue, of course, that no one has the right to make any choices that will result in the destruction of an embryo or fetus. It is their business, they insist, to prevent the pre-meditated “murder” of every potential life, even that being carried by a stranger, who honestly believes that her unwanted fetus is not yet a “life” — at least for the first trimester or so — unless she chooses to give birth to it.

These right-to-lifers would go so far as to require a young girl who was raped by her drunken father to bear that child. It is not the fetus’s fault, they would argue, that it was created by incestuous rape. Let it not be killed for the sin and crime of the father.

Those right-to-lifers who would make an exception in such extreme cases — and most elected officials who claim to be right-to-life advocates do support limited exceptions — must acknowledge that they are supporting the right of the pregnant girl, rather than the state, to choose whether to abort or give birth. Why then should other pregnant females who have compelling reasons — medical, emotional, familial, religious, financial — not have the right to choose? Why should the impersonal state take that right from them?

The issue of “who decides?” is a complex one in a democracy governed by the rule of law and the separation of powers. In addition to the personal question, we must also ask the jurisprudential question: “Who decides who decides?” Is it the legislators in our 50 states who decide whether it is the state or the individual who gets to make the choice? Is it the members of Congress? Is it a majority of the nine Supreme Court justices?

This is not an easy question, even for those of us who strongly support a woman’s right to choose, as a matter of morality, justice or religion. Not every moral or religious right is a constitutional right, enforceable by the Supreme Court. There is nothing explicit in our Constitution regarding abortion. There are vague references to the right of individuals to be “secure in the persons,” which imply a right of privacy. But there are equally vague references to the right to “life.” Any honest reading of the words, history and intended meaning of the Constitution, must lead to the conclusion that the framers did not consider the issue of abortion. They did not explicitly include either the right to choose or the right to life in the context of the abortion debate: it was not occurring at the time of the framing. But the framers almost certainly did include the power of future courts to give contemporary meaning to the open-ended words they selected for a document they hoped would endure for the ages — as it has done.

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